constitutional law essay

The Actual Powers Of The Police

This written piece will look at two areas of the law. Firstly, what powers the police actually have under the laws of England and Wales to regulate processions and assemblies. This will be looked at in the context of racist groups and other extreme organisations namely that of the English Defence League and the British National Party. Secondly, how these powers have been applied in light of the rights conferred onto people by the Human Rights Act 1998, including the freedom of expression, the freedom of assembly and the freedom of association.

Actual powers of the police

Under the common law there is no express prohibition on how many people can amass in any one place at any one time. This would suggest a complete freedom for processions and assemblies for those who wish to engage in assemblies in England and Wales. However, there are a large range of powers that have been granted to the police under statues and legislation to regulate processions and assemblies whenever these are considered to have the potential of causing harm.

One power that the police do have is to ensure that any person protesting or is part of an assembly does not cause any harm or violence to the police themselves. Under s.89(1)(2) of the Police Act 1996 ‘any person who assaults a constable in the execution of his duty, or even a person who is simply assisting a constable in the execution of his duty, or resists or wilfully obstructs either of these two people in the execution of these duties’ [1] , is committing an offence under the criminal law. So, if the police are regulating a procession or an assembly and they come across people participating in the procession who seeks to prevent the police or members helping the police from regulating the procession, then those people are potentially committing an offence [2] .

However, the fact that they are committing an offence is not helpful for the police. What the police will need to do if somebody is being wilfully obstructive is to be able to arrest him. Therefore, a distinction must be made between arrestable offences, for which a person can be arrested, and those for which a person cannot be arrested. [3] Given this, s.89(2) does not appear to be an arrestable offence. However, when read in line with the general powers of arrest for breaching the peace under s.25 of the Police and Criminal Evidence Act 1984, then the offence of ‘wilfully obstructing a constable or someone assisting a constable in his duty’ does amount to an arrestable offence [4] , and therefore a police officer can arrest anyone who he believes to be potentially guilty of this offence. A criticism of this provision is that the police are often found to abuse their powers especially during demonstrations by telling the protestors what to do because of the general nature of the power. However, this section has now been repealed by s.110 of the Serious Organised Crime and Police Act 2005 [5] . Again, this provision is helpful for the police to arrest when they come across those who are being unhelpful and interfering during processions and assemblies.

In the case of Duncan v Jones, [6] a police officer had told the appellant not to carry on a meeting at a certain place as he feared that doing so would breach the peace. Nevertheless she carried on the meeting, which resulted in the police officer arresting her. She alleged that the police officer had no power to carry out the arrest. However, the courts found for the police officer, holding that her offence was an arrestable one and so the police officer had been justified in his actions [7] . Although this case is based on the old law, the effect of it was to widen the scope of the powers that the police have with regards to ensuring that the peace has been preserved.

Powers of the police to regulate racist processions

In the modern day it is very important to regulate processions and assemblies which can have the potential to cause racial hatred. As will be seen below, the UK law does provide for the right to the freedom of expression. However, the problem is that many people see this right as giving them the freedom to express racist behaviour. One of the older provisions that granted the police with power to prosecute was seen in s.70 of the Race Relations Act 1976, [8] which provides that it is an offence for a person to publish or distribute written material which is threatening, abusive or insulting in any public place [9] . So, if during an assembly or procession, someone was found to be handing out this type of material then they would be guilty of an offence under the 1976 Act. This is now repealed by s.40(3) or s.18 or s.19 of the Public Order Act 1986 [10] .

Furthermore, the executive have the power to prohibit an assembly in advance if it is considered that it will affect public order, a power provided for under s.13 Public Order Act 1986. See class notes. However, a criticism of this is it must be shown in advance that the procession or assembly is likely to violate public order and this can be difficult to show, thereby making it difficult to ban any procession or assembly in advance. The types of marches that are considered to affect public order are violent processions and ones that incite racial hatred. Given this, they are less likely to be publicised and so there is less scope to outlaw them in advance by the executive.

The EDL has previously caused serious public disorder by means of police confrontations and violence in areas such as Bradford in 2001. Therefore, the Home Secretary empowered a blanket ban preventing any marching throughout Bradford in August 2010. But this did not authorise the power to prevent them from conducting a static visible demonstration. Given the impact on the local community and for the protection of property, the police were issued with the power to impose conditions on the size, location and duration of the static protest if they believed it will result in serious public disorder. as well as racist and Islamophobic chanting. National Front in the 1970s. BNP. Static protests are far more easily controlled by the Police than marches and less likely to degenerate into violence. anti-fascist demonstrators are often not far behind. their freedom of speech isn't affected in the least - they are still allowed a static protest where they can speak,

http://www.guardian.co.uk/uk/2010/aug/20/english-defence-league-ban

What HAS been curtailed is their freedom to rampage through residential areas, inciting violence, damaging property, and intimidating locals and their children.

Free speech, as advocated by a number of concerned souls here, is all very well, provided you don't exercise it with the intent to provoke violence (as opposed to possibly resulting in anger). This march, to be held at a place with no links to their organisation and in a place with a large Pakistani-origin population, was patently not a march designed to remain peaceful.

the English Defence League has become the most significant far-right street movement since the National Front.

The widest powers that are provided to police to regulate racist processions are in the fact that racist behaviour is in itself considered to be a crime. Indeed, the criminal law has provided that racism constitutes one of the widest range of crimes that exists today. S.28 of the Crime and Disorder Act 1998 provides that any offence which exhibits a racist element to it can be considered to be ‘racially or religiously aggravated’. S28(1) sets out that an offence is racially or religiously aggravated if at the time of committing the offence, hostility based on a person’s membership of a racial or religious group is exhibited, or if the offence is motivated by hostility towards members of racial group. Therefore any chants or other words recited during a racist procession are capable of amounting to racially aggravated harassment. [11] This provides police with the power to arrest all those taking part in a racist procession on the grounds of racially aggravated offences, and if any crimes greater than that are committed, such as assault or affray, discussed in further detail below, the police can arrest for this too.

Furthermore, not only can the police arrest for such behaviour, but the sentencing for racially aggravated behaviours is much stricter and imposes greater penalties on those considered guilty of such an offence, therefore acting as a deterrent to people to participate in racist processions.

Perhaps the most useful powers available to police to break up public associations are those contained in the Public Order Act 1936. [12] This amends the previously existing Public Meetings Act 1908 (chapter 66 8 Edw 7) and provides that any person who acts in a disorderly manner at a public meeting can be guilty of an offence. [13] Indeed, even a person who simply incites disorderly manner is guilty of an offence. One of the limitations of the act however is that the disorder is required to be for the purpose of preventing the purpose of the meeting or preventing business which serves the purpose of that meeting. As such, if a person were causing disorder simply for reasons of doing so, or for any other reason unconnected with the purpose of the meeting, it would appear that this particular power cannot be used. Nevertheless, the law has evolved to provide that any racist behaviour is considered to amount to disorderly behaviour. As such any people or groups of people who are considered to be committing racially aggravated offences fall within the provisions of the Public Order Act 1936. Once again, just as with s.51(1) of the 1964 Act, if the offence under the 1936 Act is seen as to be able to come within s.25 of PACE then the offence consists of an arrestable one. Indeed, the police have in the past considered using provisions of the Act to regulate processions that are capable of inciting hatred against races, such as processions in support of the British National Party policies. [14]

Processions and assemblies that are extreme in their opinions and instigate racist behaviour are likely to be highly passionate in their opinions due to the very nature of any particular aspect they are protesting against. Past incidents have shown that the regulation of racist behaviour often results in a reaction from a group that is exhibiting that behaviour, which in turn can cause a counter-reaction. This can be seen in an incident involving the BNP where riots were seen to arise in response to the head of the BNP being invited to a news conference outside Parliament. [15]

Under the laws of the UK, where twelve people or more are present, who threaten unlawful violence, and are there for a common purpose, they are capable of being convicted of the offence of riot. A riot would be caused if the conduct of the twelve people would cause any person of reasonable firmness present at the scene to fear for his personal safety, as contained in s.1 of the Public Order Act 1986 [16] .

Riots not only makes people participating in the riot guilty of an offence and therefore hopefully act as a disincentive for those people to participate in that particular assembly or procession, but it also grants the police special powers. A special division of the police can use special weapons in order to contain and control the procession. The fact that only twelve people are required means that it can be quite easy for riot provisions to be used by the police. However, a criticism of this is that, the fact that they all need to be there for a common purpose means that a common purpose needs to be inferred by the twelve people before this power can be used. Therefore, people who simply get involved with riots for different purposes would not be guilty of the offence. Furthermore, the test is of ‘reasonable firmness’, which is someone who is caused to have reasonable fear. This can be seen to be an objective test which is always difficult to ascertain in the circumstances given that people have different and varying levels of tolerance and fear of violence (footnote Clarkson & keating).

One challenge that might particularly present to officers, even in the context of peaceful protest and assemblies, is how protests can be regulated so that they do not disproportionately interfere with pedestrians and cars. S.137 of the Highways Act 1980 [17] provides that anyone who wilfully obstructs a highway is guilty of an offence. [18] Police can therefore use this provision to ensure that any protests or assemblies do not wilfully obstruct highways. However, the problem with this power is in the word ‘wilfully’, which implies that there must be an element of intent involved in the person obstructing the highway. This might not always be present – in a very large demonstration for example it may be that a person or a group of people obstruct the highway simply because there is no space for them to stand outside the highway. Although it can be used by the police to plan processions and assemblies in advance of them taking place, it is a lot more difficult to use for large processions for people who could potentially be accidentally rather than purposefully blocking any highway.

However, case-law has shown that the intention elements are not as stringent as one might expect. In the case of Arrowsmith v Jenkins, [19] Miss Arrowsmith was convicted under s.137 of the Highways Act 1980 even though it was not her intent to block the highway. In that case, she had held a meeting on a part of the highway. When asked by the police to draw people together, she did so, but was still blocking the highway. It was held by the courts that the fact that she intended to hold the meeting meant that she had intended to block the highway since she knew it would do so. While the court’s reasoning does lessen the intent requirements for one to be found guilty under s.137, the fact was that Miss Arrowsmith knew in advance that her meeting would block the highway. It does not appear therefore that this case would help the police against people who might accidentally be blocking highways.

Homer v Cadman (1886) [20] sets out further guidance on what amounts to an ‘obstruction’. A simple reading of the word ‘obstruction’ might imply that it requires that vehicles or people are actually blocked from advancing on the highway. The case of Homer established that this was not the case and in effect gave police wider powers to use the section. In that case the defendant had made sure that he allowed enough space on the highway for vehicles and pedestrians to pass. Nevertheless, he had blocked part of the highway. This was seen to amount to an obstruction of the highway. [21] As such, police are able to utilise the provisions for the protection of highways even if the entirety of the highway is not obstructed.

It is also notable that in regulating processions and assemblies the police have all the usual powers that are available to them. Therefore, any person guilty of an offence of affray, where he uses or threats unlawful violence against another, assault, or intentional harassment alarm or distress are available. However these are remedies to use against individual members of the procession rather than those as a whole. However, what is important is that processions which are seen to have a racist element to them means that people may be potentially guilty of the racially aggravated forms of these offences – the law provides that the racially aggravated forms of these offences are more serious in nature and carry more stringent penalties for them, which again should hopefully act as a disincentive to those participating in those processions and assemblies. [22]

The effect of the Human Rights Act 1998

Given the above information, it is clear that the police have extensive powers to take action against racist groups and extreme organisations during processions and assemblies in England and Wales. However, one must bear in mind that these powers are subject to the protections granted to all those within the jurisdiction of England and Wales by the Human Rights Act (HRA) 1998 [23] . The HRA incorporates into the UK the rights contained in the European Convention of Human Rights (ECHR). [24] The 1998 Act contains a legislative duty for all public authorities to comply with the rights contained in the Act and s.3 of the Act even imposes an interpretative duty that all legislation where possible must be read in compliance with the rights provided for in the Act. [25] So, any powers that the police do have to regulate processions and assemblies in England and Wales must be read in light of the rights provided for in the Act.

For this written piece, the most relevant rights are those contained in Article 11 of the Convention, which are the right to the freedom of peaceful assembly and the right to the freedom of association. The rights are described as two separate rights although clearly they are linked to each other in many ways. The right of the freedom of association means that all individuals can come together, and form a collective entity to represent their interests. [26] The right to the freedom of assembly can be seen to expand this right even further and provides rights to people to organise and participate in public demonstrations, meetings and any forms of assembly (footnote Barendt Page 268). At first it is clear that these rights go against the idea of granting police powers to regulate processions and assemblies in England and Wales. Also relevant alongside these two rights is the right to the freedom of expression contained in Article 10. [27] One can see that when taken together, the rights allow processions and assemblies for the purpose of expressing a certain thing.

However, what must be noted is that the rights to freedom of assembly and association and the right to the freedom of expression are not absolute rights but are limited rights. There are two types of rights that exist in the European Convention, which are absolute and limited rights. Absolute rights are those rights which always need to be respected in its pure form and cannot be limited in any way. One example is the right to life under Article 2, which would apply for example even in a wartime situation and cannot be breached for any reason whatsoever [28] . The absolute nature of the right to life has meant that the European Court on Human Rights (ECtHR) considers that the death penalty, even while justified in other jurisdictions, contravenes Article 1 of the ECHR and holds that extradition of a person to a country where he is at risk of the death penalty amounts to a contravention of Article 1 [29] . Other Articles such as those which confer the rights to the four freedoms are described as ‘limited rights’. This means that while the rights should always be respected, in certain circumstances interference with the right can be justified and would not amount to a contravention of the Convention. [30]

To interfere with even a limited right is not however a simple matter. The ECHR as incorporated into the HRA 1998 specifically sets out when and how these rights can be restricted. Therefore, in relation to the rights of the freedom of assembly and association Article 11(2) provides that ‘no restrictions shall be placed on the exercise of these rights other than...’ and goes on to set out the only purposes for which the rights can be restricted as: ‘Such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the projection of the rights and freedom of others’. [31] Therefore it can be seen that this right can be limited for seven purposes which are; national security, public safety, preventing crime, protecting health, protecting morals, protecting the rights of others.

What is also helpful when considering what powers police have to regulate protests is that Article 11(2) goes on to provide that ‘This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the state’. The key word in that provision is the word ‘lawful’. Therefore, the police (and other administrators of the state) do have the power to restrict the rights, but these restrictions must be ‘lawful’ which means that the restrictions must be placed only for one of the seven purposes set out in the Article.

So, it can be seen that the police powers described above are capable of being used to regulate powers and processions. However, any restrictions must be in accordance with the lawful purposes set out in the Convention. One would be mistaken in thinking that the police have a large level of discretion in deciding whether or not such purposes have achieved – The case law of the ECtHR in Strasbourg illustrates just how much principles need to be taken into account when considering whether or not the restrictions are in accordance with a lawful purpose or not.

The first principle that can be established is that the European Courts have afforded a wide interpretation to the rights contained in Article 11. Therefore, the convention has stated that the right to organise political demonstrations can be seen to be a ‘fundamental right’ [32] and includes not only marches, but also meetings. [33]

One might envisage that what might be a limitation in the rights granted to the freedom of assembly and association is the reasons and purposes of assembly and association, and the contents of those meetings. The police powers described above appear are based on the content of certain meetings and processions. So if for example there is racist material being distributed then police have wider powers to regulate this. However, this has not been found to be the case by the European court. Thus for example in one early case, a German sit-in was aimed at blocking the entrance to American barracks, which clearly interrupted the operations of those barracks. One would envisage that in such an instance the rights of those protesting could be limited. However the Strasbourg held that the sit-in still counted as ‘non-violent assembly’ and thus any interference with the right required justification under Article 11. [34]

One criticism of this can be that granting rights to assembly and association for whatever purpose greatly restricts the power to regulate any such protests and assemblies. However a distinction must be made here. As stated above, simply because the right exists is not the end of the matter – the courts have stated that the right still exists whatever purpose association or assembly is being made for, but it has stated that those rights can be restricted for lawful purposes and it is in those restrictions that the police can be seen to hold their powers.

One issue that has been seen to be particularly controversial with the police is the problem of counter-demonstrations. In some instances, the right to protest by a particular group does not contravene any of the purposes set out under Article 11(2), such as public safety or public morals. However, it does raise the risk of counter-demonstrations. If the police wish to restrict any assembly in order to prevent counter-demonstrations, then it would be difficult for them to do so because the original demonstration itself is not raising the risk of public safety, but it is that of the counter-demonstrations. This issue has been debated extensively in the courts. However, the Courts have stated that the police not only have the power, but also have positive duties placed upon them to protect those who are exercising the right to peaceful assembly from violence of counter-demonstrations (caselaw). Therefore, if there are two groups of demonstrators and one of them is acting violently then that violence is seen to be contravening the right of the other group to peacefully demonstrate. In which case, the police are under a positive obligation to protect the right to peaceful demonstration by taking action against the violent demonstrators. Given this, the police can be seen in this instance to have wide powers to regulate the protest and the fact that they have a positive obligation imposed on them would only strengthen the extent of the power they can exercise. [35]

The provision that grants the police with the most power to regulate protests and processions is within the wording of Article 11 which provides that there is a right to ‘peaceful’ assembly and association. So, if any protest or procession is regarded to not be peaceful, then the police can limit it without having to look at the restrictions placed under Article 11. Given this, the widest remit of power for the police is when the processions or protests are violent rather than peaceful. In this case the rights within Article 11 do not exist and the police are not prevented in taking the action to regulate these protests by the law.

However any interference with the rights to the freedom of assembly and association that the police exercise, as well as being for one of the seven purposes set out in Article 11, they must also be ‘prescribed in law’. This means that any police power carried out must have been legislated for by the legislative authorities. In the UK, this is not a problem because most police powers are set out in statutes as seen above. However, this does not mean that the police have less discretion to use other powers to regulate protests and processions if that is what they wish to do.

Furthermore, member states are granted a margin of appreciation when deciding how to implement the rights contained in the convention [36] . Although the rights in the convention must be respected by every member state, there are some differences in how each right is implemented. An aspect in which states are granted a margin of appreciation in is when states are balancing two different rights against each other, such as the right to the freedom of expression and the right to privacy. Clearly these two rights contradict each other and a balancing exercise must be struck. [37] Therefore, the Courts have been granted a margin of appreciation in striking this balance.

Conclusion

In conclusion, it can be seen that the police do have a wide range of powers available to be able to regulate processions and assemblies. The starting point is that there is no prohibition on the actual processions or assemblies in the common law, but there are specific prohibitions in the law such as for blocking the highway or interfering with public order and the police have the powers to regulate these processions as a result of the laws. Many of these laws allow the police to arrest those who are believed to be guilty of an offence while being part of the procession or assembly. This therefore allows the police to regulate the situation at the time when the assembly is taking place, by carrying out live arrests. However, all of these powers must now be read in light of the rights provided for in the European Convention of Human Rights, the most relevant of these can be found in Article 11 which is the right to the freedom of assembly and association, as well as the right to the freedom of expression as seen in Article 10. These are not absolute rights but are limited rights and so they can be interfered with in limited circumstances. Given that police restriction of those protesting or assemblies would constitute such interference the laws set out on interference with the rights must be complied with: namely that any police powers exercised against those exercising their rights to freedom of assembly and association are prescribed in law (and so cannot be exercised on an ad hoc basis), that they are for a lawful purpose set out in the convention and that they are proportionate in achieving their aims. The law on the European Convention has successfully struck a balance between the need for police to preserve public order whilst also allowing for the rights contained in the European Convention to be exercised.

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